It is conventional wisdom that China’s Constitution is unenforceable, and plays little role in China’s legal system, other than as a symbolic document. This view rests on the fact that the Supreme Court has no power to interpret the Constitution. The formal body with interpretive power, the Standing Committee of the National People’s Congress, has never issued an official interpretation. Despite this apparent lack of enforcement, we argue that China’s Constitution indeed plays an increasingly important role within the party-state. It does so not through the courts but through the legislative process, in which formal requirements of constitutional review have helped the legislature to resolve complex disputes about the relationship among different government organs, the economic system, and even rights claims. Understanding this hidden mechanism contributes to our knowledge of the internal constitutional workings of authoritarian systems, which differ from those of liberal democracies. But it is also consistent with broader literatures on the constitution outside the courts, in which internal legislative processes have received relatively little scrutiny.

In his provocative article, The Limits of Enumeration, Richard Primus rejects what he calls the “internal-limits canon” and challenges the assumption that the powers of Congress do not add up to a general police power, such that “there are things Congress cannot do, even without reference to affirmative prohibitions like those in the Bill of Rights.” Primus does not claim that federal power actually does amount to a general police power, only that it might. His principal claim is that nothing in the theoretical nature of enumerated power requires an a priori limit on the aggregate scope of delegated authority. As result, the modern Supreme Court is wrong to limit its interpretation of government power in order to maintain a distinction between “what is truly national and what is truly local.”

If we are talking about enumeration in general, then Primus is right: logic does not require that all enumerations of delegated authority exclude at least some other possible delegated authority. If we are talking about our actual Constitution, however, he is wrong. Whatever else is uncertain about the scope of delegated power, the constitutional text, reasonably interpreted, communicates that the sum of all actual delegated federal power amounts to something less than all possible delegated power. If a theory of federal power allows federal regulation of every possible subject, that theory cannot be correct. This fundamental truth about the limited scope of delegated powers of the American government is canonical for good reason: no other interpretation of the meaning of the text is reasonable. In the case of the federal Constitution, the sum of all enumerated power is less than all possible power.

12/29/2014

At NRO, Ed Whelan faults Judge J. Harvie Wilkinson for the recent decision in Stuart v. Camnitz, in which a panel of the Fourth Circuit (Judge Wilkinson writing) invalidated on First Amendment grounds a North Carolina statute that required physicians to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions.

The decision may well be correct, but (as Ed Whelan notes) it's remarkable coming from Judge Wilkinson, who is the author of the leading recent appeal to judicial restraint as an alternative to both originalism and living constitutionalism -- Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance. If judicial restraint means strong judicial deference to legislative judgments (as Judge Wilkinson defines it, rightly in my view), one would think it indicates the opposite result in Stuart -- there's no obvious Supreme Court case on point, the Constitution's text has nothing specific to say on the matter, and other courts have upheld similar statutes.

For me, this highlights the problem with judicial restraint as a self-contained theory of constitutional adjudication. If it is going to mean anything more than total judicial deference to legislative judgments, it needs a theory for when deference is overridden. But it has none (notably, Judge Wilkinson does not develop one in Cosmic Constitutional Theory). Unstated, then, its rule seems to be: defer except when the legislative judgment is unreasonable. That rule, though, is not manageable in practice. Without more definite parameters, the rule easily becomes: defer except when the judge does not like the legislative outcome (or perhaps: when the judge really does not like the legislative outcome). And in this way, judicial restraint becomes little more than a rhetorical device, invoked where judges intervene against the political branches in ways that the speaker doesn't approve (for example, conservatives when they are talking about something other than campaign finance, or liberals when they are talking about something other than same sex marriage). It would have more force as a theory if its proponents stuck up for it more broadly in practice.

How do “the people” exercise their “constituent power” to replace the current constitutional order? The conventional answer — drawing heavily on the American Founding period — is that the people act through specialized constitution-making bodies like constitutional conventions in an extralegal form of constitutional politics. Comparative experience, however, suggests self-dealing majorities can dominate these specialized constitution-making bodies, claim to represent the limitless constituent power of the people, and then unilaterally draft new constitutional law that entrenches their power or policies.

This Article will recover the American tradition of constituent power — which is still present in the common law of the American states — that limits the powers of specialized constitution-making bodies. This tradition in turn minimizes a serious agency problem in constitutional replacement: It allows the people (the principal) to better control their representatives (agents) in extraordinary constitution-making bodies. A recovery of this American practice therefore represents an important step in helping revise the universal claim that courts should play no role in constitutional politics. It suggests that judicial review can — in certain contexts — play an important role in ensuring a fuller and more deliberate expression of constituent power in formal constitutional replacement.

Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did.

In his lucid and compressed account of the argument of Damon Root’s new book Overruled, the excellent libertarian judicial scholar Ilya Somin has done us the service of presenting in a pithy and powerful way the libertarian vision of the proper place of the Supreme Court in our constitutional system. The key conflict these days is between libertarians and (social) conservatives, and the key interpretive choice is between “originalism” and deference to legislatures.

According to Somin, the libertarian view is becoming increasingly mainstreamed while the conservative view is on the defensive—soon to be defeated, in fact, although “not without a fight.”

The libertarian innovation hidden in the appeal to originalism is the proposition that our Framers intended that their original or classically liberal principles would, by means of the Supreme Court’s jurisprudence, routinely trump legislative deliberation. To me it seems quite possible to be an originalist in the sense of being all for natural rights, and still doubt that judicial review was ever meant to be much more than an “auxiliary precaution” that would be rarely used. Liberty’s main defenses against “majority faction” and such, if the Federalist is to be trusted, are 1) the coalition-building process in the legislature of a large and diverse republic, and 2) the separation of powers’ checks and balances.

... [M]ost modern originalists – including conservatives such as Steve Calabresi and the late Robert Bork – do not base originalism on “original intent” – the specific intentions and expectations of the framers. The dominant version of originalism is now “original public meaning”: the idea that the words of the Constitution should be interpreted in accordance with the public understanding of the words at the time of enactment. Often, the original meaning of a constitutional provision is a broad general principle that courts and others must apply to changing social conditions and increasing knowledge of relevant facts. For example, most originalists agree that the Fourth Amendment restricts wiretapping and that the First Amendment protects speech on the internet, even though the Founding Fathers probably could not have imagined either situation. The combination of fixed principles, changing social conditions, and new scientific knowledge yields decisions protecting old rights in new ways that are nonetheless consistent with originalism.

I basically agree, but with this caveat: It's one thing to say that the rules adopted at the founding can be applied to new technologies, such as the internet, that the founders could never have imagined. I think few if any originalists doubt this proposition. It's another thing to say that because of "changing social conditions, and new scientific knowledge" the rules adopted at the founding can be applied to reach the exact opposite of the results the founders intended or expected. I agree that sometimes this might be possible (see here for my tentative originalist argument for constitutional protection of same-sex marriage). And I further agree that the ultimate inquiry is the original meaning of the words adopted, not the intent or expectations of those who adopted them. But the intent and expectations of those adopted the language is extremely strong evidence of what the language originally meant. They might have been mistaken about their language, but they are much less likely to have been mistaken about it than we are. Usually, if I hear someone arguing that the language means something other than what a consensus of the framers thought it meant, I think they are substituting their own values for the framers'. That might be a good thing (because the framers' values were not always right) but it isn't originalism.

There are at least two proposed ways for a textualist judge to find ambiguity because of a non-textualist judge’s view. One proposal is that the textualist judge finds ambiguity because there is “ambiguity in the choice of interpretive approaches,” — i.e., “reasonable minds can disagree about the proper approach to interpretation.” That’s the proposal in [Eric Posner and Adrian Vermeule's] joint post #1. Another proposal is that the textualist judge learns something from the non-textualist judge about the textualist meaning, because there are overlapping inputs into textualist and non-textualist meaning. That’s the proposal in Adrian’s latest response.

One could endorse either, or both, but it’s worth being clear about them because they’ll have different implications for how and when the theory actually works.

12/23/2014

Over at Balkinization, Jack Balkin has a response to the Liberty Forum on Steve Smith’s essay on the Original Decision. In my essay, I had some critical things to say about Jack’s view and Jack pushes back against them. Unfortunately, I believe Jack appears to misunderstand the originalist theory that John McGinnis and I present in our book, Originalism and the Good Constitution.

I had criticized Jack’s version on the ground that it used normative arguments to adopt a thin theory of the Constitution’s original meaning. As Jack wrote:

Inevitably, then, we face a choice in the present about what aspects of cultural meaning should constitute “original meaning” for purposes of constitutional interpretation. There is no natural and value-free way to make this selection. It cannot be settled by the meaning of “meaning,” much less the meaning of “original.” It is a choice that is informed by the purposes of a constitution and the promotion of the kind of legitimacy (democratic, social, procedural, or moral) we want our government to have.

Jack claims that McGinnis and I also adopt our original methods approach based on normative considerations. Jack writes:

That is, their account of original methods originalism is not driven by the fact that this is simply what an accurate interpretation of a text is. Rather this choice is driven by their deeper theory of why originalism is justified in the first place. They argue that combing adherence to constitutional rules created by a supermajority with original interpretive methods achieves the best consequences for a polity, and that this -- not democracy or the rule of law -- is the basis on which originalism can be justified. But both of these are value choices: I want to make sure that the Constitution maintains democratic legitimacy over time, they want to ensure that the Constitution produces good consequences.

Unfortunately, this is not correct. We make two arguments in favor of original methods originalism. The first is interpretive (or positive in contrast to normative). We argue that determining the original meaning of the text requires that one make reference to the original methods. See page 117-126 of our book.

It is true that we also argue for the original methods based on the normative argument that Balkin mentions, but that is an independent argument. It is a key aspect of our argument that the most accurate meaning of the Constitution requires following the original methods. That this interpretive argument coincides with the normative argument is important, but it does not mean that we believe that the original meaning is determined by the normative argument. The more accurate way to put it is that we believe there are normative arguments for following an original meaning defined by non-normative interpretive ideas.

I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay. The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it. Even so, I’m not persuaded– not yet anyway– to abandon the idea. I’ll try briefly to explain why (without purporting, in a short rejoinder, to answer all of the many questions raised).

And here are some thoughts on the "positive turn" in originlism, one of the most important new developments in originalism scholarship:

The “fundamental justification for originalism,” [Will Baude] suggests, is not the desire to respect authority and promote rationality in our law; rather, “[o]riginalism is important because it’s part — and maybe more than just part — of our current legal practice.” It’s part of “our law.” Will calls this view “the positive turn” in originalism.

Now on one level I entirely agree with Will. Originalist inquiries and arguments are part of our legal practice; if they weren’t, we wouldn’t have the same interest in them. (Though non-originalist decisions are also part of our practice.) The “positive turn” conveys an insight that is important in ways we can’t explore here. But does this insight provide any justification for originalism? I don’t see how.

Suppose you ask me why I make important decisions by flipping coins, or consulting a horoscope, or studying the Bible. And suppose I respond, “I do it because that’s my practice.” My response may be true enough, but it doesn’t answer your question. You already know this is part of my practice– that’s why you’re asking about it– but you’re wondering if there is some justification for this particular practice which, as your question suggests, you find puzzling or problematic. And, without more, saying “It’s my practice” (or, basically, “I do it because that’s what I do”) fails to supply any such justification. The same is true, I think, for collective practices, including legal practices – including originalism.

In this respect, I don’t understand how “the positive turn” provides help with the familiar dead-hand objection, as Will thinks. Suppose I make all major decisions by speculating about and then doing what my great-grandmother Matilda would have advised, and you suggest that I’m being irrationally servile. I should think for myself, you say (parroting Kant) – make my own decisions. Suppose I respond, “I am making my own decisions. Granny doesn’t force me to do anything; I follow her advice only because I choose to do that.” My response will be true: ancestors (whether my great-grandmother or “the Framers”) can’t step out of the grave and compel us to do anything. But that observation does nothing to justify a practice of choosing to defer to them.

The U.S. Supreme Court's decision in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), has again focused widespread public attention on the Court as an arbiter of the balance of power between the federal government and the states. The topic of the proper role a nation's highest court in this respect has been important and controversial throughout not only American, but also Canadian history, raising questions of constitutional theory for a federalist republic: What justifies unelected judges interfering with the ordinary political process with regard to federalism questions? Can courts create judicially manageable doctrines to police federalism, with anything more than the raw policy preferences of a the justices as to whether a particular legislative issue is best resolved at the federal or state/provincial/local level? Do doctrines that limit the ability of a national political majority to enact into law policy preferences that are not shared by national political minorities who constitute a majority in one or more states or provinces reflect a country's constitutional values?

This Article summarizes the salient aspects of Canadian federalism jurisprudence to shed light on current American controversies. Part I offers brief thoughts on the American constitutional doctrine, suggesting that it fails to provide a coherent and meaningful line between what is national and what is local. Part II discusses the origins of Canadian constitutional federalism and the significantly greater restraints that Canadian judges impose on Parliament than American judges impose on Congress. Part III traces significant differences between Canada and the United States relevant to judicial arbitration of federalism disputes. Part IV analyzes two important aspects of Canadian constitutional doctrine that limit much federal legislation to situations where provinces are unable to act and suggests that these doctrines reflect both historical and contemporary Canadian constitutional values. Next, the Article questions whether current American doctrine similarly reflects historical and contemporary American federalism values. It suggests that this comparative analysis presents American Justices with a clear opportunity to enhance the judicial manageability of federalism standards by borrowing two doctrines from north of the border. These doctrines would significantly limit the ability of national majorities to adopt legislation preventing national minorities that control one or more state legislatures from enacting policies that, in the majority's view, harm the welfare of the entire nation. The Article concludes by questioning whether this importation reflects American constitutional values, and, if not, whether the search for a judicial standard to distinguish what is national and what is local should be abandoned.